SCA dismisses appeal by doctor over process leading to amputation of patient’s leg

Standerton GP Dr Abdus Patel has been successful in a damages claim against fellow doctor Dr Frederick Louw. Patel was shot during a robbery at his home-based practice, and sued Louw for negligence after his leg was amputated. 

The Supreme Court of Appeal (SCA) recently found in Patel's favour.  

After Patel was shot during a robbery, paramedics arrived and attended to him after 5pm. Dr Joosub, a colleague and neighbour of Patel, also arrived to provide assistance, after being alerted to the incident.

Dr Frederick Louw, was also contacted and took over Patel's care at the nearby Standerton Hospital. However, he informed Joosub there were other immediate patients he was seeing and that he had an emergency appendectomy scheduled that evening.  

Louw arrived after the ambulance, examined Patel and concluded Patel had a fracture of the left femur with no pedal pulse on his left leg, indicating a potential vascular injury. This type of injury could not be treated at Standerton Hospital.

Louw managed to delay the appendectomy. He then attended to Patel by splintering the leg and ordering an X-ray. Louw then performed his appendectomy, because, in his view, it was urgent. 

Joosub, still assisting his colleague, took the results to Louw, who was still in surgery. All the parties agreed that a delay in restoring blood supply to a leg could result in ischemia (which is inadequate blood supply to an organ, which can result in the necessity of amputation as occurred here).

The hospital did not have a vascular surgeon, so Louw decided to transfer Patel to a facility with such a surgeon, for urgent restoration of blood to the leg.  

There were numerous delays — such as an inability to obtain airlift transport — and Patel had to be transported by ambulance to Pretoria East Hospital. Arrangements were made between Louw and this recipient doctor to receive Patel. 

It took three hours to get Patel to Pretoria East. However, due to apparent miscommunication, the attending doctors were surprised to find the absence a pedal pulse — the very reason for the transfer from Standterton. Patel had to be moved yet again to a different hospital as Pretoria East had no way to treat Patel's injury. 

Finally, Patel arrived at Pretoria Heart Hospital after midnight. The doctor on-site examined Patel in theatre and was able to partially treat Patel's leg but only three hours later. Despite this, Patel’s lower left leg did not regain viability and was subsequently amputated.

Patel brought legal proceedings in 2016, against Louw and Joosub in the High Court in Pretoria. Patel said that both had acted negligently, by not urgently referring him to an institution equipped with the proper facilities and expertise to treat his injuries.

Joosub died before the full court had heard the matter, so proceedings against him were withdrawn.  

Acting judge Mokgere Masipa noted the essence of the case was “the time taken to treat the injury.” Most of the judgment was therefore spent on evaluating the evidence and contentions pertaining to delays.

Patel's first claim arose from Louw's late arrival at the hospital. However, Masipa held: “Although this is significant in medical terms, in my view, the difference provides no support to the broad claim of negligence.”

Patel’s second claim was that Louw should have prioritised his transfer over the appendectomy that Louw performed. Masipa agreed: “There was no evidence that the condition of the patient [with appendicitis] had become a threat to his life.” The transfer could have been initiated and Louw could have then attended to the appendectomy, says Masipa. 

Patel’s third claim was Louw failed to properly communicate with the initial recipient doctor, Marcel Straub. Masipa agreed: “My view is that it is not only improbable but impossible that Dr Straub would have facilitated the transfer to Pretoria East Hospital if [Louw] had alerted him to a vascular injury.” 

After analysing expert evidence about time delay, Masipa held that, in the hands of a reasonable doctor, the total time from diagnosis to theatre would “have been more or less three hours.” However, Masipa held that as a result of Louw's “failure”, there was “a delay of approximately seven hours”.

In the end, Masipa held that “the evidence is, therefore, that the negligence of [Louw] is directly linked to the respondent’s leg being amputated”.

Masipa dismissed Louw’s appeal with costs. 

Writing for the minority of the SCA, acting judge Annali Basson, said the majority judgment put too much weight on one particular expert, Kenneth Boffard. Basson notes that another expert, Konrad Botes “was the attending specialist vascular surgeon and the only expert with first-hand knowledge of the extensive injuries sustained by [Patel].”

The two experts differed primarily on “when the point of no return was reached after which [Patel’s] leg could not be salvaged.” For Basson, Botes provided better evidence, in-line with current academic literature. However, as it was only a minority judgment, as Boffard’s evidence was preferred. 

Reacting to the judgment, Bernard Wessels, professor in private law at Stellenbosch University’s Law Faculty, noted the folowing: “The judgment is a great example of the importance of expert evidence in these types of cases... Given the highly technical nature of the matter, some commentators have suggested the use of experts that may assist judges on these issues in future. Finally, given the fact that the judgments reach opposing outcomes on factual causation, as well as the difficulties in proving this requirement for liability, one wonders whether our law should develop in this context.”

moosat@businesslive.co.za